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Google Loses Picture Copyright Case In Germany

     
2:57 pm on Oct 13, 2008 (gmt 0)

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Google Loses Picture Copyright [bloomberg.com]Case In Germany
Google Inc., owner of the world's most popular Internet-search engine, lost two copyright lawsuits in Germany over displaying photos and artworks as thumbnails in a preview of search results.

Google's preview of a picture by German photographer Michael Bernhard violates his copyrights, the Regional Court of Hamburg ruled, his lawyer Matthies van Eendenburg said in an interview today. Thomas Horn, who holds the copyrights on some comics that were displayed in Google search results, won a second case, court spokeswoman Sabine Westphalen said in an e-mail.

5:24 pm on Oct 13, 2008 (gmt 0)

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Hoorah! Thanks Michael & Thomas.

Even if it's just in Germany, it shows Google that they can not do whatever they want.

5:34 pm on Oct 13, 2008 (gmt 0)

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This is stupid because the solution is technological, not legal:

User-agent: Googlebot-Image
Disallow: /

5:35 pm on Oct 13, 2008 (gmt 0)

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Even if it's just in Germany, it shows Google that they can not do whatever they want.

So the guy puts up a web site, doesn't tell Google NOT to index his site, enjoys all the visitors that Google send him over the years, then decides to sue Google?

Doesn't sound like a reason to celebrate to me.

Besides removing all his images in their images index, I hope they completely remove his site from their main index.

8:18 pm on Oct 13, 2008 (gmt 0)

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This is stupid because the solution is technological, not legal:

User-agent: Googlebot-Image
Disallow: /


And why is that the solution? Why does one have to stop every other new search engine that comes along in indexing their content.

Why not?:

Allow User-agent: Googlebot-Image

8:24 pm on Oct 13, 2008 (gmt 0)

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User-agent: *
Disallow: /

Then anyone disobeying his robots.txt is just asking to be sued.

Or, why didn't he just password protect his site to keep ALL the bots out?

8:24 pm on Oct 13, 2008 (gmt 0)

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Given the thousands of 'bots' in the wild, I think the solution of blocking just one is nonsense.

I like danielro's suggestion. I think all indexing should be done this way, images or not.

Bots should have to adhere to a legally binding contract on my server, and pay me if they eat my bandwidth.

[edited by: jcoronella at 8:25 pm (utc) on Oct. 13, 2008]

8:25 pm on Oct 13, 2008 (gmt 0)

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Why not?:

Because vast majority of sites don't have robots.txt at all, if search engines only included in searches those people who opted-in specifically then the choice offered to the users would be so much lower and backlinks ranking won't work well since majority of the sites won't be available for crawling. More importantly no new players like Google would emerge so the "search" would be dominated by early directory players like Yahoo.

Maybe that's the kind of Web you'd like to see happening, but I sure don't.

However using images the way Google does is probably a stretch, but seems reasonably fair if they link back to where full image was found.

9:08 pm on Oct 13, 2008 (gmt 0)

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User-agent: Googlebot-Image
Disallow: /

In most cases this is correct.
However, I have one site where I have it in place and Googlebot-Image strictly follows the rule but then Googlebot started to take the denied images so I had to put a rule in place to stop Googlebot from taking any jpg, gif, swf etc. files.

I was pretty annoyed and I'm keeping a close eye on Googlebot's crawling of this site.

9:24 pm on Oct 13, 2008 (gmt 0)

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>>>>>This is stupid because the solution is technological, not legal:
>>User-agent: Googlebot-Image
>>>Disallow: /

When was the last time you saw 'please do not photocopy' in the front of a book?

9:42 pm on Oct 13, 2008 (gmt 0)

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Since it was just a Thumbnail it should be considered Fair Use.
10:01 pm on Oct 13, 2008 (gmt 0)

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When was the last time you saw 'please do not photocopy' in the front of a book?

Pretty much every time I open a book- that's the meaning behind that little copyright notice.
10:26 pm on Oct 13, 2008 (gmt 0)

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Why does one have to stop every other new search engine that comes along in indexing their content.

You don't.

It's called WHITELISTING and you dynamically serve up the following to everything asking for robots.txt not in your whitelist:

User-agent: *
Disallow: /

See WebmasterWorld's dynamic robots.txt code for a sample of how this is done:

[webmasterworld.com...]

11:50 pm on Oct 13, 2008 (gmt 0)

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>>When was the last time you saw 'please do not photocopy' in the front of a book?

>Pretty much every time I open a book- that's the meaning behind that little copyright notice.

All true, but irrelevant.

Because I open the first book on the nearest shelf, and right there on the same page with the copyright notice ("please do not copy this book"), I see another paragraph labelled "Library of Congress Cataloging in Publication Data".

In other words, "Please DO index this book, and here's how..."

The book sitting next to it has no such notice, but, you know what? It was indexed by the L. B. Taylor Library anyway.

Thumbnails aren't copies: they cannot substitute for copies, because they can't serve the same purpose.

They are, pure and simple, visual index entries.

12:06 am on Oct 14, 2008 (gmt 0)

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Pretty much every time I open a book- that's the meaning behind that little copyright notice.

Why is it people are able to accept a copyright notice in a physical book as valid but if I place a copyright notice on a website it is assumed insufficient? It is well within the ability of Google, even if it is not possible for smaller engines, to parse a copyright notice - just drop by codesearch.google.com and you will see they even categorise entries there by copyright license.

Thumbnails aren't copies: they cannot substitute for copies, because they can't serve the same purpose.

I disagree with that. I'm sure I'm not the only one who has looked up an item in Google Images and found the thumbnail to be entirely sufficient to tell me what the item is. For fine art, a thumbnail probably isn't sufficient, but for a cartoon character it often is - just look at the tiny unclear images which were well tolerated in handheld game consoles a few years ago.

The whole issue rests upon reasonable effort; whether Google makes a reasonable effort to ensure permission before doing this. I don't think it is reasonable to require Google to have explicit permission in every case, but it is reasonable to require Google to try to send an automated email to a listed contact address with a simple statement of intention and links to reply 'yes' or 'no'.

12:10 am on Oct 14, 2008 (gmt 0)

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whether Google makes a reasonable effort to get permission before doing this.

And we're right back to the robots.txt issue.
If people don't want Google to index their content, then block Google in the specified manner. Period. Case closed. Why is it so difficult for people to understand?
12:15 am on Oct 14, 2008 (gmt 0)

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Thumbnails aren't copies: they cannot substitute for copies, because they can't serve the same purpose. They are, pure and simple, visual index entries.

Well, the German court thinks otherwise.

I'm all for:

Allow User-agent: Googlebot-Image
12:42 am on Oct 14, 2008 (gmt 0)

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>I'm sure I'm not the only one who has looked up an item in Google Images and found the thumbnail to be entirely sufficient to tell me what the item is.

I entirely agree. Google Images has exactly the same purpose as the (online) card catalog in my local library. It's SUPPOSED to be entirely sufficient to tell me what the book is.

Because that's what an index is. Not a substitute for the thing, just as my phone book is no substitute for the local Pizza Hut. It enables me to find the Pizza Hut.

1:23 am on Oct 14, 2008 (gmt 0)

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This is an interesting thread, because we've discussed this issue for many many years here. I think there was a monster thread when Google first starting doing this. Incredibill knows the counterarguments well and made the statement anyway.

People seem to like the traffic from the images but not always the arrogance to assume it's ok to make us opt-out.

I'm not a lawyer, but I don't think it's ok to assume that people are ok with it. Lots of people can use the web and have no clue how to opt out even if they read WW dynamic code 50 times. And while 99.99% of the people here WANT google to send them traffic, you can't assume that everyone wants google IMAGES to do so...and they certainly aren't doing it just as a gesture of goodwill.

It's interesting that there are still no ads on the image pages. Probably intentional for legal purposes to be able to claim no financial benefit.

2:00 am on Oct 14, 2008 (gmt 0)

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And why is that the solution? Why does one have to stop every other new search engine that comes along in indexing their content.
Why not?:

Allow User-agent: Googlebot-Image


Why not just forget about the web and stick to traditional marketing? That's a solution too, no?

Or

User-agent: *
Disallow: /

Take your pick.

2:02 am on Oct 14, 2008 (gmt 0)

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Incredibill knows the counterarguments well and made the statement anyway

HEHEHE...

I was wondering when someone would call me on that! ;)

I have always maintained that the lack of a robots.txt file or the lack on a robots meta tag in the index page should indicate no crawling because the webmaster has no clue and you're imposing your will on his copyright without explicit permission.

If the webmaster wants indexed by Google bad enough, he'll figure it out and add a robots.txt file or meta tags.

Also, if your bot isn't expressly mentioned nor is there a catch-all for all bots "User-agent: * " you should also assume you keep your hands off the site.

Likewise, if they want into your service they'll update to mention your bot.

Unfortunately, everyone plays the opt-out card because the argument is that logistically
nobody could launch a new service if it required everyone to opt-in.

I never bought that argument because it assumes entitlement to anything on the web.

However, what to you think the plaintiffs would do if Google just banned them both from the index and they started to fade into obscurity without being found in the search engine whatsoever?

My guess is come back begging to be indexed.

3:48 am on Oct 14, 2008 (gmt 0)

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There you go ;)

Of course, they'd come back begging for it. That's what makes this whole thing such an interesting case.

5:22 am on Oct 14, 2008 (gmt 0)

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Copyright concept is "opt in", not "opt out".

Your work is -even when published- protected by copyright, except for a few (rare) cases where "fair use" may apply. The fact that you can get your hands on a physical copy does not automatically mean that you may copy and re-publish the content in your hands. You need to seek permission before doing so.

Creating a robots.txt file that disallows all bots under the sun (or serving a dynamically created robots.txt) turns around that principle. Everyone is opted in, until you specifically tell them to not index your site.

Which is wrong. (But yeah, I guess, all these arguments are well known and have been discussed ad nauseam in the past here and elsewhere.)

7:18 am on Oct 14, 2008 (gmt 0)

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My guess is come back begging to be indexed.

And if I was Google, I would tell them to suck it. If you're going to publish something on the web, learn how to use the robots.txt. It's a lot easier than suing people or crying to your mommy.

7:58 am on Oct 14, 2008 (gmt 0)

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IB, I just ran into a blog post of yours about the SEO who crawled the web for billions of pages.... Great stuff but even if you hadn't explained, that would show clearly where you stand on the debate in this thread :)
8:48 am on Oct 14, 2008 (gmt 0)

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So the guy puts up a web site, doesn't tell Google NOT to index his site, enjoys all the visitors that Google send him over the years, then decides to sue Google?

Doesn't sound like a reason to celebrate to me.

Besides removing all his images in their images index, I hope they completely remove his site from their main index.

For what reason do we have to say to google dont index our site . Should it be common practise that google does index a site ?

Okay sure on the pro side : free traffic = sales

on the con side : private data is displayed to the whole world .

My real question is should it be that google indexing your site is opt in ? rather than opt out . Who gives google the right to go and display every site they want ? I would understand if they were a community based organisation which doesnt make a profit , but hey google makes a profit from displaying my site , surely there should be some relationship or even mutual relationship . Sure they have great technology and great employees but without us clients and our consent they are nothing !

Regards

Malcolm

8:53 am on Oct 14, 2008 (gmt 0)

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Slightly off topic, but does anybody know if you can claim copyright protection if you were to publish printed material without a copyright notice. Or does it become public domain.

i.e. Do you 'opt in' to copyright by publishing a copyright notice in the real world? Would this be akin to robots.txt- asserting your rights if you wish to claim them?

Is it illegal to photograph art? Is the rules different for private or public use? Can this be thought of analogous to thumbnails?

9:44 am on Oct 14, 2008 (gmt 0)

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@Shaddows:

does anybody know if you can claim copyright protection if you were to publish printed material without a copyright notice. Or does it become public domain.

No, you do not lose copyright protection. You might receive less benefits when successfully enforcing your copyright, but you do not lose copyright protection. Today, if no source can be found, a publisher has to refrain from using that image/content and find something else that he may use.

By the way, this is being changed right now. The US is currently looking at the "Orphan Works" law that will greatly "improve" the way so-called orphaned works can be used by publishers. Orphan works are works that do not carry information about the creator/copyright owner. This will harm the entire content industry big time.

10:31 am on Oct 14, 2008 (gmt 0)

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This taking place in the jurisdiction of Hamburg doesn't surprise me - courts here are draconian and nasty. Cliche goes that Americans are litigious? Yeah right.. combine German bureaucracy with the free-wheeling internet and you have a paradise cottage industry here of lawyers assistants pursuing frivolous violations.

The only one losing from these local district judges making decisions on the global internet are legitimate businesses, and the only ones gaining are (as usual) lawyers, and real lawbreakers. This is not the wild west, you can't just decide to hang 'em high in your neck of the woods because it suits you, while there are already global initiatives like the DMCA evolving.

Then again, Germany is also the only TLD I know of that enforces that you show the special 'Impressum' webpage on all your .DE sites. Just to make extra sure the schools of legal sharks can hone in on you in an extra quick manner.. :(

12:28 pm on Oct 14, 2008 (gmt 0)

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The reality of image search is twofold:

1) The tool is only useful if it includes more than a tiny subset of sites.

2) Of all the sites on the web, a few really want Google to index their images, a few find such indexing objectionable, and the vast majority don't care one way or the other.

Forcing an opt-in would destroy the value of the tool. The few sites who are aware that Google image search exists have an easy way to block it. And, as hutcheson and others note, a thumbnail is almost certainly fair use (under US law) and is in no way a substitute for the real image.

I've got a site or two which generate a fair amount of image search traffic. I don't mind, as I assume that some people will view the page where the image comes from and become interested in the site.

If fair use questions arose in some jurisdictions, I suppose Google could further degrade the utility of the thumbnail by watermarking it, or even do the same for the "view full size image" link. Both would force the user to the actual page to view the real image.

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